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JOHN A. NEWCOMER v. CIVIL SERVICE COMMISSION FAIRCHANCE BOROUGH AND FAIRCHANCE BOROUGH (09/18/86)

decided: September 18, 1986.

JOHN A. NEWCOMER, APPELLANT
v.
CIVIL SERVICE COMMISSION OF FAIRCHANCE BOROUGH AND FAIRCHANCE BOROUGH, APPELLEES



Appeal from the Order of the Court of Common Pleas of Fayette County, in case of John A. Newcomer v. Civil Service Commission of Fairchance Borough, No. 280 of 1985.

COUNSEL

John M. Purcell, Davis & Davis, for appellant.

Thomas A. Bowlen, with him, A. J. Kuzdenyi, for appellees.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 100 Pa. Commw. Page 560]

John A. Newcomer (Appellant) appeals from an order of the Court of Common Pleas of Fayette County, Pennsylvania which dismissed his appeal from the decision of the Civil Service Commission of the Borough of Fairchance (Commission) affirming Appellant's removal from the Fairchance Borough Police Department by the Borough Council.

On October 25, 1984, after completing his patrol duties at about 12:00 midnight, Appellant returned to the police office in the Borough Building. Shortly thereafter, Bill Price, a borough ambulance corps volunteer, approached Appellant with a can of aerosol spray in his hand. These two men had frequently engaged in "horseplay" consisting of grabbing, shoving and spraying one another with cans of air freshener. As Price entered the police office on this occasion, Appellant drew his loaded service weapon and pointed it at Price. Price immediately dropped the aerosol can and left the room. As a result of this incident, the Borough Council removed Appellant from further employment with the

[ 100 Pa. Commw. Page 561]

    police force, pursuant to Section 1190 of The Borough Code (Code),*fn1 53 P.S. § 46190, for violating Pennsylvania law and engaging in conduct unbecoming an officer. Pursuant to Section 1191 of the Code,*fn2 53 P.S. § 46191, Appellant demanded and was granted a hearing before the Commission. Following such hearing, his removal was affirmed. Appellant appealed this action to the Fayette County Court of Common Pleas, which held a brief de novo hearing and accepted into evidence the transcript of the testimony before the Commission. The court then affirmed the removal.

Before this Court, Appellant raises three arguments. First, he asserts that he was deprived of a property interest in his job without due process of law, second he asserts that the charges upon which he was removed were not supported by substantial evidence in the record, and third, he argues that even if his conduct did warrant disciplinary action, the penalty of removal was

[ 100 Pa. Commw. Page 562]

    so severely disproportionate to the offense as to constitute an abuse of discretion by the Commission and the court.

Appellant's constitutional argument is based upon the decision of the United States Supreme Court in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487 (1985). He asserts that he had a property interest in his continuing employment under Section 1190 of the Borough Code, and that the provisions of Section 1191 of the Code, which outline the procedures to be followed in suspending, removing or reducing an officer in rank, are unconstitutional because they fail to provide the minimal due process guarantees of pre-termination ...


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